Prosecutors in the US legal system have great power to interfere at their discretion in the lives of citizens, and face relatively few checks on the exercise of this discretion. The vast scope of the criminal law provides a pretext for prosecuting nearly anyone. Meanwhile, other features of the legal system, such as the way plea bargains are structured and the doctrine of prosecutorial immunity, further increase prosecutorial power. And existing institutional restraints on prosecutorial abuses, (...) such as democratic accountability, the grand jury system, and the possibility of a selective prosecution defense, are mostly ineffectual. I draw on republican political theory, including insights from Philip Pettit and Elizabeth Anderson, to argue that this state of affairs gives prosecutors dominating, and therefore unjust, power over vast swathes of the public. I then survey some potential institutional changes which might help ameliorate the problem. (shrink)

Elected prosecutors have pledged not to enforce abortion laws, in response to state-level abortion bans. For their pledges to be meaningful, prosecutors must exercise their discretion in cases of individuals who face legal risk, including people who help others self-manage their abortions. With a harm-reduction approach to improving abortion access, prosecutors should aim to reduce abortion helpers’ involvement with the criminal justice system.

Determining whether a person who appears to have committed an offence should then be prosecuted for it requires a number of assessments and weighing of interests. Yet, to read the latest Code for Crown Prosecutors, one would think that the exercise of prosecutorial discretion is a relatively unstructured process. This is because the Code does not require prosecutors to identify an aim in seeking the punishment of the accused, and because it does not distinguish between the harms caused (...) to the defendant by punishment and the distinct harms which are caused to him by prosecution. I shall argue that the aim of the prosecutor (assuming that guilt will be proven) should be to decide whether the aims of punishment of the accused would be justified by the likely costs of the proceedings, but that this aim may be constrained by considering the harms which may be caused to the defendant by prosecution. If this structure were to be accepted, then it would both be easier to draft a Code for Crown Prosecutors which has useful guiding value and to identify to whom the prosecutor should be accountable for his decisions. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of the (...) record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

Any case raising the profile of ‘assisted-dying’ and public policy naturally causes consternation, excitement, heated debate and concerns from different parties, worried that the law is unclear, unfair, too conservative, too permissive, neglectful of ‘the vulnerable’ or indifferent to the proper scope of freedom for ‘the competent’. It was unsurprising, then, that much attention focused on the litigation between Debbie Purdy and the Director of Public Prosecutions .1–4 Ms Purdy has muscular sclerosis, and would like to be free, at a (...) time of her choosing, to travel to receive assisted suicide in a jurisdiction that permits this. To do so, she will need the help of her husband. In contrast with the famous Pretty case,5 Ms Purdy did not seek a proleptic immunity from prosecution under the Suicide Act 1961. Rather, she invoked her human right to respect for private and family life, and argued that the DPP should publish guidance detailing the basis on which he exercises his discretion to bring a prosecution for the crime of aiding, abetting, counselling or procuring a suicide in England and Wales. Her case, when heard in the House of Lords, was successful. 3A decision to prosecute cases of assisted suicide pivots on the satisfaction of two key issues: the ‘evidential test’—is there sufficient evidence to justify bringing a prosecution?; and the ‘public interest test’—is it in the public interest to bring a prosecution? Rightly or wrongly, the threshold for meeting the evidential test seems to be set very low.6 Focus tends to fall, therefore, on the public interest aspect of the decision. In September 2009, the DPP published interim guidance, which detailed the offence of ‘assisting a …. (shrink)

We typically think of prosecutorial ethics as encompassing a special set of obligations for prosecutors during the pretrial and trial stages of a criminal case. In the literature and in rules of professional responsibility much attention is paid to the charging function, contact with unrepresented persons, plea negotiations, discovery, and courtroom decorum. Our concern with prosecutorial ethics at these stages is rooted primarily in due process and fairness to the accused. [W]hile he may strike hard blows, the Supreme (...) Court wrote in Berger v. United States, [a prosecutor] is not at liberty to strike foul ones. Whether it is a recognition that the prosecutor acts as a representative of the sovereign or that he or she possesses extraordinary power over people's lives, we speak about the prosecutor's ethical duties as special or additional to those of ordinary lawyers. By preventing a prosecutor from litigating unfairly, the aim is to protect a criminal defendant from an unjust or unwarranted conviction. What, then, are the ethical duties of prosecutors after the defendant has had his fair shot at trial, but lost? The literature and standards are surprisingly silent, with rare exception, on the post-conviction ethics of prosecutors. Constraints on the prosecutorial function seem to reach their apex at trial. Why? Are the reasons for special or additional ethics for prosecutors non-existent on appeal? Is the vast discretion, present at the pretrial and trial stages and thought by some to justify special ethical duties, absent on appeal? As a recent case from Texas illustrates, ethical issues still abound even after a jury returns a verdict of guilty. Nevertheless, the traditional discourse on pre-conviction duties can help us determine how prosecutorial discretion should be exercised after a conviction has been obtained. (shrink)

The role of the public prosecutor in sentencing has become the subject of intense debate in recent years. Experts recognize that their influence on sentencing practice is profound, and that the implications of their influence is far reaching. In this original study the author assesses the influence of the public prosecutor in Scotland, the Netherlands, England and Wales and Germany over the process of sentencing offenders in the criminal justice system. This study offers a detailed analysis of prosecutorial power (...) to issue sanctions, such as fines, warnings and referrals to rehabilitation at the pre-trial stage, and develops three new models of justice seeking to analyse and explain the increasing use of prosecutorial power. The overlap between the role of prosecutor and judges is also discussed. This book is an original enquiry into an aspect of the role of the prosecutor which is increasingly important in major criminal justice systems, and will be of great interest to all those interested in the criminal justice system and the sentencing of offenders, and in comparative criminal justice policy and practice. (shrink)

This article clarifies and further defends the view that the right to be presumed innocent until proven guilty, protected by Article 6(2) of the European Convention of Human Rights has implications for the substantive law. It is shown that a ‘purely procedural’ conception of the presumption of innocence has absurd implications for the nature of the right. Objections to the moderate substantive view defended are considered, including the acceptability of male prohibits offences, the difficulty of ascertaining intentions of legislatures and (...) the proper role of prosecutorial discretion. (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any relevant (...) facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at length in (...) “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

Following the decision of the House of Lords in Purdy, the Director of Public Prosecutions was required to promulgate guidance as to how prosecutorial discretion is exercised over the decision of whether to prosecute or not under the Suicide Act 1961. The resulting policy essentially confirms that if a lay person, who is motivated wholly by compassion, provides minor and reluctant assistance to a mentally competent adult, he or she is extremely unlikely to be prosecuted. Consequently, prosecutorial (...) policy over cases of complicity in suicide might be viewed as presenting a procedural compromise between explicitly allowing and robustly prohibiting assisted suicide. This paper explores the legal and ethical implications of compromising over complicity in suicide. (shrink)

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific (...) person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. (shrink)

This article offers a comparative analysis of the phenomenon of pre-trial non-disclosure of criminal evidence, as exhibited by police and prosecution authorities in the US and English legal systems...

Advocates of dynamic systems have suggested that higher mental processes are based on continuous representations. In order to evaluate this claim, we first define the concept of representation, and rigorously distinguish between discrete representations and continuous representations. We also explore two important bases of representational content. Then, we present seven arguments that discrete representations are necessary for any system that must discriminate between two or more states. It follows that higher mental processes require discrete representations. We also argue that discrete (...) representations are more influenced by conceptual role than continuous representations. We end by arguing that the presence of discrete representations in cognitive systems entails that computationalism (i.e., the view that the mind is a computational device) is true, and that cognitive science should embrace representational pluralism. (shrink)

In this paper, I present a discrete solution for the paradox of Achilles and the tortoise. I argue that Achilles overtakes the tortoise after a finite number of steps of Zeno’s argument if time is represented as discrete. I then answer two objections that could be made against this solution. First, I argue that the discrete solution is not an ad hoc solution. It is embedded in a discrete formulation of classical mechanics. Second, I show that the discrete solution cannot (...) be falsified experimentally. (shrink)

Topics covered in Discrete Mathematics have become essential tools in many areas of studies in recent years. This is primarily due to the revolution in technology, communications, and cyber security. The book treats major themes in a typical introductory modern Discrete Mathematics course: Propositional and predicate logic, proof techniques, set theory (including Boolean algebra, functions and relations), introduction to number theory, combinatorics and graph theory. An accessible, precise, and comprehensive approach is adopted in the treatment of each topic. The ability (...) of abstract thinking and the art of writing valid arguments are emphasized through detailed proof of (almost) every result. Developing the ability to think abstractly and roguishly is key in any areas of science, information technology and engineering. Every result presented in the book is followed by examples and applications to consolidate its comprehension. The hope is that the reader ends up developing both the abstract reasoning as well as acquiring practical skills. All efforts are made to write the book at a level accessible to first-year students and to present each topic in a way that facilitates self-directed learning. Each chapter starts with basic concepts of the subject at hand and progresses gradually to cover more ground on the subject. Chapters are divided into sections and subsections to facilitate readings. Each section ends with its own carefully chosen set of practice exercises to reenforce comprehension and to challenge and stimulate readers. As an introduction to Discrete Mathematics, the book is written with the smallest set of prerequisites possible. Familiarity with basic mathematical concepts (usually acquired in high school) is sufficient for most chapters. However, some mathematical maturity comes in handy to grasp some harder concepts presented in the book. (shrink)

The distinction between the discrete and the continuous lies at the heart of mathematics. Discrete mathematics (arithmetic, algebra, combinatorics, graph theory, cryptography, logic) has a set of concepts, techniques, and application areas largely distinct from continuous mathematics (traditional geometry, calculus, most of functional analysis, differential equations, topology). The interaction between the two – for example in computer models of continuous systems such as fluid flow – is a central issue in the applicable mathematics of the last hundred years. This article (...) explains the distinction and why it has proved to be one of the great organizing themes of mathematics. (shrink)

The present study provides evidence that valence focus and arousal focus are important processes in determining whether a dimensional or a discrete emotion model best captures how people label their affective states. Individuals high in valence focus and low in arousal focus fit a dimensional model better in that they reported more co-occurrences among like-valenced affective states, whereas those lower in valence focus and higher in arousal focus fit a discrete model better in that they reported fewer co-occurrences between like-valenced (...) affective states. Taken together, these findings suggest that one static, nomothetic theory may not accurately describe the subjective affective experience of all individuals. (shrink)

Sociologists have identified many factors that mitigate the progressive effects of the legal mobilization to end sexual violence. Within this body of research, however, there is little interrogation about the social construction of sexual harm. I use the case of child sexual abuse to investigate how prosecutors make sense of sexual harm. Data are qualitative interviews with 43 prosecutors. Findings reveal that prosecutors use a framework of sexual identity to construct sexual injury on the child’s body. The perceived harm centers (...) on the anticipated loss of the child’s heterosexual potential. Girl victims are thought to grow into sexual promiscuity, and boy victims are thought to grow into sex offenders. Prosecutorial constructions of child sexual abuse cases are future-oriented, which increases their urgency, and these constructions also imagine the child as a person in formation, rather than a fully actualized person with intrinsic rights. In revealing how the state of sexual victimization is not only deeply gendered but also heteronormative, this research has theoretical implications for childhood studies, queer studies, and anti-violence advocacy. (shrink)

We present two discrete dualities for double Stone algebras. Each of these dualities involves a different class of frames and a different definition of a complex algebra. We discuss relationships between these classes of frames and show that one of them is a weakening of the other. We propose a logic based on double Stone algebras.

A book on the notion of fundamental length, covering issues in the philosophy of math, metaphysics, and the history and the philosophy of modern physics, from classical electrodynamics to current theories of quantum gravity. Published (2014) in Cambridge University Press.

I propose a version of quantum mechanics featuring a discrete and finite number of states that is plausibly a model of the real world. The model is based on standard unitary quantum theory of a closed system with a finite-dimensional Hilbert space. Given certain simple conditions on the spectrum of the Hamiltonian, Schrödinger evolution is periodic, and it is straightforward to replace continuous time with a discrete version, with the result that the system only visits a discrete and finite set (...) of state vectors. The biggest challenges to the viability of such a model come from cosmological considerations. The theory may have implications for questions of mathematical realism and finitism. (shrink)

In this field questions arise which are certainly difficult; but as I listened last time to members of the group, I felt that the main difficulty perhaps lay in determining precisely what questions we are trying to answer. I have the conviction that if we could only say clearly what the questions are, the answers to them might not appear so elusive. So I have begun with a simple list of questions about discretion which in one form or another (...) were, as it seemed to me, expressed by the group last time. I may indeed have omitted something and inserted something useless: if so, no doubt I shall be informed of this later. The central questions then seem to me to be the following: 1. What is discretion, or what is the exercise of discretion? 2. Under what conditions and why do we in fact accept or tolerate discretion in a legal system? 3. Must we accept discretion or tolerate discretion, and if so, why? 4. What values does the use of discretion menace, and what values does it maintain or promote? 5. What can be done to maximize the beneficial operation of the use of discretion and to minimize any harm that it does? (shrink)

This paper argues that liberal tenats that justify intervention to promote the welfare of an incompetent do not suffice as a basis for analyzing parent-child relationships, and that this inadequacy is the basis for many of the problems that arise when thinking about the state's role in resolving family conflicts, particularly when monitoring parental discretion in medical decision-making on behalf of a child. The state may be limited by the best interest criterion when dealing with children, but parents are (...) not. The state's relation with the child is formal while the parental relation is intimate, having its own goals and purposes. While the liberal canons insist on the incompetent one's best interest, parents are permitted to compromise the child's interests for ends related to these familial goals and purposes. Parents decisions should be supervened, in general, only if it can be shown that no responsible mode of thinking warrants such treatment of a child. Keywords: proxy medical consent, children's rights, state's protection of children, parental authority and the state's intervention, paternalism, liberalism, parental values CiteULike Connotea Del.icio.us What's this? (shrink)

Recent discussions in the philosophy of science have devoted considerable attention to the analysis of conceptual issues relating to the methodology of explanation and prediction in the sciences. Part of this literature has been devoted to clarifying the very ideas of explanation and prediction. But the discussion has also ranged over various related topics, including the status of laws to be used for explanatory and predictive purposes, the logical interrelationships between explanatory and predictive reasonings, the differences in the strategy of (...) explanatory argumentation in different branches of science, the nature and possibility of teleological explanation, etc. The aim of the present article is to examine the issues involved in such questions from the specialized perspective afforded by one particular kind of physical systems--namely, systems, here to be characterized as discrete state systems, whose behavior has been studied extensively in the scientific literature under the general heading of Markov chains. These systems have been chosen as our focus because their behavior over time can be analyzed at once with great ease and with extraordinary precision. (shrink)

Causal connectionists need to provide an account of causal linkage and of causal direction. This chapter distinguishes between two kinds of causal connection, namely, discrete and continuous. Causal connectionists have a number of options for explaining the linkage between causes and effects in the case of discrete causation. The chapter provides some popular options. If some causation is discrete, and the exercise of causal powers provides a direction to discrete causation, then the causal direction of processes can be derived from (...) the causal direction of discrete interaction. David Hume famously made the claim about the knowledge of causation in his Enquiry Concerning Human Understanding. Hume offers, in defense of his principle, a set of thought‐experiments that seem to show that we can always imagine any event's having a different result from the one we in fact observe. Causal processes like locomotion may provide counterexamples to Hume's Epistemic Principle. (shrink)

The discretionary powers of welfare state professionals are in tension with the requirements of the democratic Rechtsstaat. Extensive use of discretion can threaten the principles of the rule of law and relinquish democratic control over the implementation of laws and policies. These two tensions are in principle ineradicable. But does this also mean that they are impossible to come to grips with? Are there measures that may ease these tensions? We introduce an understanding of discretion that adds an (...) epistemic dimension (discretion as a mode of reasoning) to the common structural understanding of discretion (an area of judgment and decision). Accordingly we distinguish between structural and epistemic measures of accountability. The aim of the former is to constrain discretionary spaces or the behaviour within them while the aim of the latter is to improve the quality of discretionary reasoning. The focus in this article is on epistemic measures that are internally related to the main characteristic of accountability, namely justified use of discretionary power. (shrink)

Leibniz argues against Descartes’s conception of material substance based on considerations of unity. I examine a key premise of Leibniz’s argument, what I call the Plurality Thesis—the claim that matter (i.e. extension alone) is a plurality of parts. More specifically, I engage an objection to the Plurality Thesis stemming from what I call Material Monism—the claim that the physical world is a single material substance. I argue that Leibniz can productively engage this objection based on his view that matter is (...) discrete. The discreteness of matter provides two aspects of support for the Plurality Thesis. First, it indicates that the parts of matter do not share boundaries and are, therefore, independent in an important sense. Second, it indicates that the parts of matter are determinate and are, therefore, ontologically prior to the wholes they compose. (shrink)

Rousseau's understanding of legislation as the expression of the general will implies a constitutional principle of legislative supremacy. In turn, this should translate to a narrow, mechanical account of adjudication, lest creative judicial interpretation subvert the primacy of legislative power. Yet in his constitutional writings, Rousseau recommends open-textured and vague legislative codes, which he openly admits will require judicial development. Thus he apparently trusts a great deal in judicial discretion. Ostensibly, then, he overlooks the problem of how legislative indeterminacy—and (...) correspondingly, judicial discretion—may undermine the authority of the general will. However, I argue that Rousseau aims to check judicial subversion of legislative supremacy simply by extending his broader social politics—and specifically, his peculiar concept of republican virtue—to the domain of law. His main concern is that the law should not develop as a mystifying expert practice; therefore, he necessarily rejects any understanding of judicial virtue as lying in principled discourse. Instead, he envisages that judicial power will be checked by a more generic sense of republican virtue. In turn this echoes his apprehension of social differentiation and social complexity as sources of domination and hierarchy. (shrink)

Heterocyst spacing in blue -green bacteria is widely assumed to be due to a diffusible inhibitor. The inhibitor, a nitrogen-rich compound, probably glutamine, is produced via the N2-fixing enzymes of the heterocyst and in turn serves to suppress the induction of these enzymes and of the differentiation of vegetative cells to heterocysts. This simple morphogenetic mechanism operating in growing cellular filaments ofAnabaena species is investigated on the basis of a continuous and a discrete cellular model, as well as by cell-by-cell (...) simulation of the inhibitor transport. The resulting distances between heterocysts and kinetics of their production are compared with observations, and the values of physical parameters are estimated from the models. (shrink)

The present study provides evidence that valence focus and arousal focus are important processes in determining whether a dimensional or a discrete emotion model best captures how people label their affective states. Individuals high in valence focus and low in arousal focus fit a dimensional model better in that they reported more co-occurrences among like-valenced affective states, whereas those lower in valence focus and higher in arousal focus fit a discrete model better in that they reported fewer co-occurrences between like-valenced (...) affective states. Taken together, these findings suggest that one static, nomothetic theory may not accurately describe the subjective affective experience of all individuals. (shrink)

Examining the role of dispositions (potentials and propensities) in both physics and psychology reveals that they are commonly derivative dispositions, so called because they derive from other dispositions. Furthermore, when they act, they produce further propensities. Together, therefore, they appear to form discrete degrees within a structure of multiple generative levels. It is then constructively hypothesized that minds and physical nature are themselves discrete degrees within some more universal structure. This gives rise to an effective dualism of mind and nature, (...) but one according to which they are still constantly related by causal connections. I suggest a few of the unified principles of operation of this more complicated but universal structure. (shrink)

H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I revise (...) an example from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence. (shrink)

In various guises (usually referred to as the “basic emotion” or “discrete emotion” approach), scientists and philosophers have long argued that certain categories of emotion are natural kinds. In a recent paper, Colombetti (2009) proposed yet another natural kind account, and in so doing, characterized and critiqued psychological constructionist approaches to emotion, including our own Conceptual Act Model. In this commentary, we briefly address three topics raised by Columbetti. First, we correct several common misperceptions about the discrete emotion approach to (...) emotion. Second, we discuss misconceptions of our Conceptual Act Model. Finally, we briefly comment on Columbetti's Dynamical Discrete Emotion model. (shrink)

Democratic institutions and practice depend on trust, in two ways. Citizens must trust each other to abide by shared rules and norms that together govern a political community; it is a feature of democratic states that they direct their resources not to enforcement of rule abidingness, but rather towards providing collective and public goods. Instead, states rely on the semi-voluntary compliance of citizens with these shared norms and laws. Citizens must also trust their political representatives, who via their election are (...) granted discretion to make decisions that will have significant impact on the lives of those they represent. Yet, according to many scholars across many disciplines, this trust is at risk of being undermined, if it hasn’t yet been so. The possible reasons for weakened and broken trust are many, ranging from escalating wealth inequalities, to increasing cultural and ethnic diversity, to political incompetence of both voters and political representatives, to corruption among political representatives. In this article, I examine the trust that underpins the discretion accorded to elected representatives, to identify when the improper use of this discretion may reasonably be thought to be a source of distrust. In particular, I argue that where discretion is used arbitrarily, it may threaten to undermine the trust relations between citizens and their representatives, and therefore the efficient and effective running of democratic states. (shrink)

Automated decision-making takes up an increasingly significant place in the administrative state. This article presents a conception of discretion that is helpful for evaluating the proper place of algorithms in public decision-making. I argue that the algorithm itself is not a site of discretion. The threat is that automated decision-making alters the relationships between traditional actors in a way that can cut down discretion and human commitment. Algorithmic decision-makers can serve to fetter the discretion that the (...) legislature and the populace expect to be exercised. We must strive to maintain discretion, moral agency, deliberative ideals, and human commitment through the system that surrounds the use of an algorithm and to develop a new expertise that can retain and exercise the expected discretion. Backing this argument are traditional legal constraints, public expectations, and administrative law principles, tied together through the organizing principle of discretion. (shrink)

Van Bendegem has recently offered an argument to the effect that, if time is discrete, then there should exist a correspondence between the motions of massive bodies and a discrete geometry. On this basis, he concludes that, even if space is continuous, it should nonetheless appear discrete. This paper examines the two possible ways of making sense of that correspondence, and shows that in neither case van Bendegem’s conclusion logically follows.

Bekenstein proposed that the spectrum of horizon area of quantized black holes must be discrete and uniformly spaced. We examine this proposal in the context of spherically symmetric charged black holes in a general class of gravity theories. By imposing suitable boundary conditions on the reduced phase space of the theory to incorporate the thermodynamic properties of these black holes and then performing a simplifying canonical transformation, we are able to quantize the system exactly. The resulting spectra of horizon area, (...) as well as that of charge are indeed discrete. Within this quantization scheme, near-extremal black holes (of any mass) turn out to be highly quantum objects, whereas extremal black holes do not appear in the spectrum, a result that is consistent with the postulated third law of black hole thermodynamics. (shrink)

In this essay, I argue against a way of approaching the issue of Judicial discretion that finds its clearest exposition and highest development in recent works by Ronald Dworkin. This approach is too narrow. It ignores a kind of Judicial discretion whose existence has been maintained by jurists with discretionist sympathies, and which is philosophically significant. The kind of discretion it ignores raises the issue of the justification of adjudication as clearly as does the kind of (...) class='Hi'>discretion that it recognizes. Moreover, discussion of the kind of discretion ignored is in some respects the natural starting place for a discussion of judicial discretion in general. (shrink)

Managers often have discretion in interpreting their ethical requirements, and they should seek democratic guidance in doing so. The undemocratic nature of managerial ethical discretion is shown to be a recurring problem in business ethics. Joseph Heath’s market failures approach (MFA) is introduced as a theory better positioned to deal with this problem than other views. However, due to epistemic uncertainty and conceptual indeterminacy, the MFA is shown to allow a much wider range of managerial discretion than (...) initially appears. The paper explores how this range can be narrowed down with democratic input, comparing models based on formal state institutions and on the informal public sphere. A case study from the pharmaceutical industry illustrates the merits of the informal public sphere approach. (shrink)